The President’s Power in the Field of Foreign Relations The first section of this memorandum canvasses the historical precedents that delineate the President’s prerogatives vis-à-vis Congress in foreign relations. These precedents tend to fall into one of two categories: those reflecting the Hamiltonian view that the President as Chief Executive has sole and unlimited authority to determine the nation’s foreign policy, and those reflecting the Madisonian view that Congress as the law-making body has primary authority to determine the nation’s foreign policy, which the President must take care to enforce. The second section of this memorandum concludes that the power of the President to repel invasion is unquestioned. It would not be necessary to resolve the conflict between the Hamiltonian and Madisonian views in the event of an invasion, because statutes expressly provide that “whenever the United States shall be invaded or in imminent danger of invasion by any foreign nation,” the President may use the military and naval forces to repel such invasion. The third section of this memorandum discusses the application of the Neutrality Act of 1937 to the Spanish Civil War and the China-Japan conflict. November 8, 1937 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL* I. The President as the Depositary of the Executive Power It is important to bear in mind that we are here dealing . with . the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress . .—Mr. Justice Sutherland There are two major contentions regarding the extent of the President’s power in the field of foreign relations: (1) That the President, as the Chief Executive, has the sole and unlimited power—that his designation in the Constitution as the depositary of the Executive Power is, in itself, a source of power. (2) That while the President as the Chief Executive is the sole spokesman of the nation in the field of foreign relations, the Con- gress as the law-making body may prescribe the policy to be fol- lowed, and the President in dealing with foreign nations must keep within that policy. * Editor’s Note: Some of the citations in the version of this memorandum that was transcribed in the Unpublished Opinions of the Assistant Solicitor General were missing, incomplete, or incorrect. We have endeavored to complete and correct these citations with sources that fit the proposition in text and were available at the time this memorandum was written. 49 Supplemental Opinions of the Office of Legal Counsel in Volume 1 The controversy between the exponents of these two views has existed since the beginning of our constitutional government. It reached bitter proportions during Washington’s administration, with Alexander Hamilton championing the first position and James Madison championing the second. The occasion for their debate was the issuance by the President on April 22, 1793 of the proclamation of neutrality with respect to the war between certain nations, including Great Britain on the one part and France on the other. This proclamation was in direct conflict with the provisions of the treaty of alliance then existing between the United States and France, and as there was strong sentiment for France in this country at the time, the proclamation aroused severe criticism. It was charged that the President had failed in his constitutional duty to “take care that the laws be faithfully executed,” in that he not only had failed to carry out the treaty but had committed the country to a policy in direct opposition to its terms. In a series of articles signed “Pacificus,”1 Hamilton came to the support of the President, justifying the action taken upon the ground that the President was the sole representative of the nation in its dealings with other nations, so that in this field no other arm of the government could interfere with or hamper his action. He took the position that in this field the President’s power was supreme and unlim- ited, pointed out that the Constitution vests in the President the Executive Power, while it vests in the Congress only such legislative power as is therein granted. From this he argued that the executive power is complete except in so far as it is limited by the Constitution, and that the constitutional limitations must be strictly construed. He even inferred that the constitutional grant to the Congress of the power to declare war is not a limitation on the President’s right to also exercise this strictly executive function, but that in this respect, the power granted to the Congress is concurrent with the inherent power of the President as the repository of the Executive Power. Madison, at the request of Jefferson,2 took issue with Hamilton and in a series of articles signed “Helvidius”3 advanced the second contention set out above. He took the position that the President’s powers, like those of the Congress, were strictly limited to those expressly granted by the Constitution and those necessarily implied therefrom, and that his duty “to take care that the laws be faithfully executed” required him to execute all laws enacted by the Congress including any bearing on the subject of foreign relations. He argued that the Constitution vested in Congress the exclusive right to regulate foreign commerce and to declare war, and that this was in direct conflict with Hamilton’s views. He contended that if the President believed the laws as enacted by the Congress were improper or inade- 1 7 The Works of Alexander Hamilton 76–117 (John C. Hamilton ed., 1851). 2 7 The Works of Thomas Jefferson 436–37 (Paul Leicester Ford ed., 1904). 3 6 The Writings of James Madison 138–88 (Gaillard Hunt ed., 1906). 50 The President’s Power in the Field of Foreign Relations quate his power was exhausted when he had convened the Congress and commu- nicated his views to that body. Madison twitted Hamilton with inconsistency by quoting from an earlier article published in The Federalist, in which Hamilton had said: The history of human conduct does not warrant that exalted opinion of human virtue, which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which con- cern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a president of the United States.4 Hamilton could well have retorted that Madison, in a speech to the House of Representatives in 1789, upon the question of the President’s power to remove from office, had said: The constitution affirms, that the executive power shall be vested in the president. Are there exceptions to this proposition? Yes, there are. The constitution says that, in appointing to office, the senate shall be associated with the president, unless in the case of inferior officers, when the law shall otherwise direct. Have we a right to extend this exception? I believe not. If the constitution has invested all executive power in the president, I venture to assert, that the leg- islature has no right to diminish or modify his executive authority.5 It is thus apparent that neither Hamilton nor Madison, the two early exponents of the opposing theories, was at all times consistent in his views on the subject. History discloses that Thomas Jefferson, likewise, was at times inconsistent. While Secretary of State under President Washington he wrote an opinion, at the request of the President, in which he said: The transaction of business with foreign nations is Executive al- together. It belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the Senate. Excep- tions are to be construed strictly.6 This statement by Jefferson has been often quoted by exponents of the Hamil- tonian theory. It is to be remembered, however, that Madison’s series of articles on the subject were written at Jefferson’s request. Moreover, although Jefferson as 4 Id. at 176 (quoting The Federalist No. 75) (emphasis added). 5 Quoted in Edward S. Corwin, The President’s Control of Foreign Relations 29 (1917). 6 3 The Writings of Thomas Jefferson 16 (Andrew A. Lipscomb & Albert Ellery Bergh eds., lib. ed. 1903). 51 Supplemental Opinions of the Office of Legal Counsel in Volume 1 President, without authority from Congress, sent the American fleet into the Mediterranean to wage war against Tripoli, after that fleet had engaged in a naval battle with the Tripolitan fleet he seemingly belied his authority for his action in a message to Congress of December 8, 1801, in which he said: Tripoli, the least considerable of the Barbary States, had come for- ward with demands unfounded either in right or in compact, and had permitted itself to denounce war, on our failure to comply before a given day. The style of the demand admitted but one answer. I sent a small squadron of frigates into the Mediterranean . with orders to protect our commerce against the threatened attack. Our com- merce in the Mediterranean was blockaded, and that of the Atlantic in peril. One of the Tripolitan cruisers having fallen in with, and engaged the small schooner Enterprise . was captured, after a heavy slaughter of her men . Unauthorized by the constitution, without the sanction of Congress, to go beyond the line of defence, the vessel being disabled from committing further hostilities, was liberated with its crew. The legislature will doubtless consider whether, by authorizing measures of offence, also, they will place our force on an equal footing with that of its adversaries.